FINDINGS & RECOMMENDATIONS
Movant is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.*fn1 He seeks post-conviction relief on the ground that his trial counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, it is recommended that movant's § 2255 motion be denied.
I. Factual Background*fn2
On March 27, 2003, in a restaurant parking lot in Lodi, California, the defendant, Edgar Ochoa, delivered approximately one-half pound of methamphetamine to Agent John Heilbrun, a Metropolitan Narcotics Task Force officer acting undercover and posing as a methamphetamine dealer. The defendant and Agent Heilbrun had negotiated and discussed the delivery of the methamphetamine over the previous eight days, and had agreed on a price of $3,200 for a quarter pound of methamphetamine, or $6,500 for a half pound. The amount of pure methamphetamine contained in what the defendant delivered to Agent Heilbrun was 141.3 grams. After the delivery, the defendant was arrested, and he told the agents that he had another half pound of methamphetamine at his house.
Later on March 27, 2003, Task Force agents executed a search warrant on the defendant's house at 134 1/2 Oak Street in Manteca, California. At the house, agents found an additional amount of almost 1/2 pound of methamphetamine, which contained 130.7 grams of pure methamphetamine, along with two weighing scales and a roll of plastic baggies.
Answer, Ex. C (Movant's Plea Agreement, Ex. A -- Factual Basis for Plea).
II. Procedural Background
On April 10, 2003, the grand jury returned a three count indictment, charging movant with two counts of distribution of methamphetamine and one count of possession with the intent to distribute. Dckt. No. 1. Movant made his initial appearance on April 15, 2003. Dckt. No. 2. He entered a not guilty plea to the charges. Id. The Federal Defender's Office was appointed to represent movant. Id. On April 23, 2003, Assistant Federal Defender Linda C. Harter formally entered her appearance as counsel for movant. Dckt. No. 6.
On July 24, 2003, the grand jury returned a superceding indictment, again charging movant with two counts of distribution of methamphetamine and one count of possession with the intent to distribute. Dckt. No. 11. Movant entered a not guilty plea to the charges. Dckt. No. 13.
On October 24, 2003, the district court set a pretrial motions briefing schedule, ordering that all pretrial motions be filed by November 14, 2003. Dckt. No. 18. On November 12, 2003, movant, proceeding through Harter, filed a motion for an order disclosing the identity and certain background information of the confidential informant who allegedly introduced the undercover agent to movant. Dckt. No. 19. Movant argued that such information would be relevant and helpful at trial because the informant would be a percipient witness and because the informant's testimony would be crucial to a potential entrapment defense. Id. The government opposed movant's motion. Dckt. No. 20. The government also moved to dismiss count one of the superseding indictment, noting that neither counts two nor three involved the confidential informant as a percipient witness. Dckt. No. 20 at Ex. C. On December 11, 2003, the district court granted the government's motion to dismiss count one. Dckt. No. 21.
On January 29, 2004, Harter moved to withdraw as counsel for movant. Dckt. No. 25. On February 6, 2004, the district court granted Harter's motion and appointed Troy Ellerman as movant's new counsel. Dckt. No. 27.
On April 27, 2004, the district court issued a trial confirmation order, scheduling trial for May 11, 2004. Id. The trial confirmation order also required that in limine motions be filed no later than April 30, 2004, and that such motions would be heard on May 7, 2004. Dckt. No. 31.
On April 30, 2004, Ellerman filed two motions in limine relating to movant's anticipated entrapment defense. Dckt. Nos. 32, 33. The first motion sought to admit movant's testimony regarding conversations movant had with the confidential informant to show that movant was not predisposed to commit the crimes charged. Dckt. No. 32. At the May 7, 2004 hearing, the district court denied the motion, stating that the court was being asked to admit testimony without knowing what the testimony would be. Answer, Ex. B at 45; Dckt. No. 42. The court also denied the motion by written order. Dckt. No. 41.
Movant's second motion in limine sought to introduce the expert testimony of a psychologist relating to movant's mental condition and vulnerability to government inducement. Dckt. No. 33. In its opposition, the government argued that the defense had failed to comply with Rule 12.2(b) of the Federal Rules of Criminal Procedure, which provides, in pertinent part, that "[i]f a defendant intends to introduce expert evidence relating to a mental disease or defect or any other mental condition of the defendant bearing on [the issue of guilt] . . . the defendant must -- within the time provided for filing a pretrial motion or at any other time the court sets -- notify an attorney for the government in writing of this intention and file a copy of the notice with the clerk. The court may, for good cause, allow the defendant to file the notice late . . . ."
Dckt. No. 38 at 16-17. Following the May 7, 2004 hearing, the court issued a written order denying this motion. Dckt. Nos. 41, 42. The court found that movant failed to comply with the notice requirement of Rule 12.2(b) because he failed to notify the government of his intent to introduce such expert evidence on or before November 14, 2003, the deadline for filing pretrial motions. The court further found that movant had not established the requisite "good cause" to justify allowing him to file the Rule ...